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session of them during the war, and expressly precluded a justification of this occupancy by virtue of a military order. It was contended that the case was not within the statute; that the laws of nations controlled it and barred the suit, and that the treaty included an amnesty, which extinguished the statute right.

No precedent, it is believed, exists for such an act of legislation; an act providing that after a war solemnly terminated by a treaty duly executed, suits could be commenced by the subjects of one belligerent against those of another for injuries committed during the war by military order.

No case could have arisen of greater interest, higher moment, or larger considerations. It was a question of national faith and national character-it was a question between the subjects of two independent nations, relating to transactions in a war between those nations.

It involved a determination of the powers of the confederacy, and of its constitutional supremacy over a law of a member of that confederacy. It was of the most grave and weighty magnitude, for it would decide whether a state tribunal would recognise the laws of nations and of the confederation as the rule of its decisions when in conflict with a local statute. It might determine the con duct of Great Britain as to the execution of the treaty, the surrender of the posts, and the peace of the union.

It involved property of a great amount, and numerous cases depending on the same principle. It was the decision of a controversy between a wealthy merchant—a British subject, an adherent of the enemy-and a fugitive, an exile, a poor American widow, impoverished by the war. It was tried while the strife of the fierce contest was recent, in the midst of a dilapidated and yet disordered city, when all around were beheld the ravages of the invader, in a hall of justice desecrated and marred by

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the excesses of its late occupants, a licentious soldiery. On one side was the attorney-general of the state, armed with all its authority to sustain its laws, representing the passions of an inflamed community, pleading for the widowed exile. On the other stood Hamilton, resting on the justice of this mighty cause.

The plaintiff's task was obvious. It was to insist upon the statute. The statute was explicit. Both the parties were within its provisions. It was obligatory, and no court of that state, no court especially of limited jurisdiction, could look beyond it. Look where? To the laws of nations,-laws having no settled foundation, undergoing constant change, affording no certain rule, and which ought to have no influence on the government of this state or upon the people. The war was unjust, admitted by the enemy to be unjust. By an unjust war, the unjust party acquires no rights, for no rights can be derived from an injury. It was not a solemn war, and therefore conferred no rights upon the captor. Nor was that court to be controlled by the treaty. New-York was a sovereign, independent state. Congress had no right to bind the state in this matter; it was interfering with its internal police. Can they by treaty give away the rights of its citizens? A case like this had never before been heard of. It was without a precedent, and stood upon the sta

tute.

Hamilton felt the advantageous position of his opponent. He passed by the immediate parties to the suit, and spoke to the question. In a brilliant exordium,* he dilated on its importance in all its various aspects; declared that the decision might affect all the relations of two great empires, might be discussed in Europe, and might produce,

The outline of this speech is framed from an extended brief, giving all the points of the argument and the authorities.

according to the issue, a good or bad impression of our country. It would establish precedents that might give a complexion to future decisions, would remain a record of the spirit of our courts, and would be handed down to posterity as indicating the character of our jurisprudence. It was a question of a most comprehensive nature; its merits include all the principles which govern the intercourse between nations. Heretofore our courts have seemed to consider themselves in an inferior light; their decisions must hereafter form precedents.

Having thus appealed to the pride of the court, he proceeded:-"We are told there is no precedent. Then, indeed, it is a new case, and a new case must be determined by the law of nature and the public good. Where the law is silent, the judge speaks; and the most ancient authority states that in England cases were adjudged according to equity, before the customs of the realm were written and made certain. This question must be decided by the laws of nations. But what, it is asked, are the laws of nations? Where are they to be found?-They are the deductions of reason, to be collected from the principles laid down by writers on the subject and established by the authorized practice of nations, and are a part of the law of the land. The laws of nations and the laws of war are part of the common law."

He then stated the two great divisions of the laws of nations. The natural, necessary, or internal, universally binding on the conscience of nations; but in its external obligations, controlled by the positive or voluntary law for the good of mankind, which is equally obligatory, and is enjoined by the natural law.

By the necessary law, the party making an unjust war acquires no rights, and is bound to make reparation for all damages. By the voluntary law-which may be defined, that system of rules which grow out of the independence

of distinct political associations, qualifying their natural rights as individuals—both parties have equal rights, having no common judge; and the effects of a war on both sides, are the same.

These effects are principally impunity, the acquisition of property; a rule established to promote the general peace of mankind, by removing discussions about the justice of the war, and the proportion of the damages to the injury and the security of purchasers, especially neutrals.

But it is objected, this was not a solemn war. The approved practice of nations is against this objection. But it was a solemn war. Formalities are arbitrary—an act of parliament authorized hostilities. The declaration of independence speaks of an open war subsisting. Congress formally authorized our citizens to cruise. It has been said that the state of New-York has no common law of nations. The answer is, that law results from the relations of universal society-that our constitution admits the common law, of which the law of nations is a part-and that the United States direct our foreign intercourse, and have expressly become parties to the law of nations. What are the effects of a war? The general proposition is, that movable goods belong to the captor forever, as soon as the battle is over; the fruits of immovables, while they are in possession. Other rules have been laid down with respect to movables; but the true rule is, the battle being The ancient precedents of pleading are not that the prize remained a night with the enemy, but that it was gained by battle of the enemy; and pleading is the touchstone of the law. The common law carries the rights of war so far as to give property in a prisoner, and an action of trespass for taking him away. Hence, we see the common law not only adopts the law of nations in its full extent as a general doctrine, but particular adjudications recognise the operation of capture.

over.

The second branch of the discussion related to the effect of the treaty of peace, and tended to show that this action could not be maintained without a violation of the treaty; every treaty of peace including an amnesty, which is of its very essence, between private persons as well as the contending publics. To the objection, that congress had no right to bind the state, that it was meddling with its internal police, he replied, that on that construction," the confederation was the shadow of a shade;" but that congress had an unquestionable right; that "the sovereignty and independence of the people began by a federal act; that our external sovereignty is only known in the union— that foreign nations only recognise it in the union; that the declaration of independence was the fundamental constitution of every state, all of which was acceded to by the convention of New-York, which does not pretend to authenticate the act, but only to give their approbation to it :" that hence it followed, "that congress had complete sovereignty; that the union was known and legalized in the constitution of New-York previous to the confederation, and that the first act of the state government adopted it as a fundamental law; from which reflections," he says, "we are taught to respect the sovereignty of the union, and to consider its constitutional powers as not controllable by any state."

The confederation is an abridgment of those powers; but, mutilating as it is, it leaves congress the full and exclusive powers of war, peace, and treaty. The power of making peace, is the power of determining its conditions. It is a rule of reason and law, that to whomsoever any thing is granted, that also is granted without which it cannot exist. If congress have not a power to adjust an equivalent for damages sustained, and remit the rest, they have no power to make peace. It is true that this power

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